Most Americans have no idea how byzantine and restrictive our land-use regime is.
One of the most striking things you learn as you study the cluster of issues that comprise urbanism is how difficult it is to build or develop things today. In poorer communities, a lack of new construction can be a result of low real estate values, where development simply doesn’t pencil out. There’s generally a broad correlation between increasing affluence and increasing new construction or redevelopment. (For example, Langley Park, Maryland, one of the least affluent D.C.-area suburbs, appears frozen in time, with most of its buildings decades old and barely any recent construction.)
But this is not always the case. Many wealthy and exclusive communities are encased in regulatory amber, making any new project—sometimes, due to historic preservation regulations, even something as insignificant as an exterior remodel on a house—extremely difficult. NIMBY (“not in my backyard”) opposition to new housing or development in general, combined with the generally byzantine process, can produce physical stagnation even in places with plenty of money, where a free market would almost certainly lead to more development than actually happens, especially in regard to housing. (Many analysts consider retail to overbuilt in America, while housing in crucial markets is underbuilt.)
And that’s the crux of it—many Americans, including many with NIMBY tendencies who simply don’t want their communities to change too much, believe we have a free market in real estate and land use. Nothing could be further from the reality. See this tweet, for example.
the process for revising the standards for a single zone (R3)
half of the timeline is CEQA pic.twitter.com/ca7Ng8daFy
— Aaron 🥑🚈🌲🏀 (@aceckhouse) October 26, 2020
Consider these three examples, with which I am somewhat familiar: Flemington, New Jersey’s Union Hotel; a large chain thrift store in Silver Spring, Maryland; and a ballfield in Reston, Virginia (shoutout as well to the crumbling and contested Hilltop Hotel property in Harpers Ferry, West Virginia, the most dramatic for illustration purposes.)
The Union Hotel is a historic property in quaint Flemington, New Jersey, across the street from the courthouse where the Lindbergh kidnapper’s “trial of the century” was held. It was an actual hotel for many decades before it became a restaurant only, with a much-coveted liquor license (an extremely expensive privilege in New Jersey). In late 2008 the restaurant closed down, having steadily lost money for nearly a decade under its final owners. Ever since then, the property has sat vacant, slowly deteriorating to the point where the latest redevelopment proposal involves merely restoring the facade and entirely rebuilding the actual structure.
I have lost track of the number of proposals, sales and transfers, and meltdowns that have occurred over this property’s redevelopment, but the saga is probably the largest source of any kind of news about Flemington. There have been Save Main Street campaigns with lawn signs, plans scaled up and scaled down, countless and endless public meetings, flips from renovation to demolition to the current facade preservation. Flemington’s own website catalogs the steps throughout the process, with three overall attempts at redevelopment since 2010 and dozens of discrete steps between them. The third and final developer, after cutting back their expansive proposal, appears set to actually begin work next year. But that could always change.
Meanwhile, the town’s most recognizable structure, smack in the middle of its otherwise pleasant and well-maintained downtown, has decayed for 12 years. How much sense does this make?
A few weeks ago, I saw a local newsletter from a Reston neighborhood association, about a redevelopment project for a disused ballfield behind a residential cluster. The development plan involves very little infrastructure or zoning concerns, simply a transition from one type of leisure space to another, with a park-like transformation planned.
This modest plan—with work likely to begin by late 2021—took four years of “concerted effort” to formulate and approve. It recounts that in 2019, the Reston Association “approved dedicated funding to study the feasibility of ‘repurposing’ the area.” The final design for the space was produced over several months by a committee. It specifically involves a Little Free Library, stepping stones, a rain garden, and other light, mostly landscaping features.
Reston is not a municipality but a planned community, so the land-use rules here are not necessarily the same as in surrounding Fairfax County. Nonetheless, a project that a group of 10 or 20 people could have executed in a few days instead took four years and some non-trivial sum of money.
Silver Spring thrift store
I’ll be publishing an entire piece on the saga of this thrift store, but in a nutshell, a professional NIMBY in the neighborhood of this store appealed the zoning board’s decision to grant a license to the thrift store, on the grounds that it should not be allowed in the particular zone, known as a C1 zone. This is for light, everyday local or neighborhood commercial uses. For example, it excludes auto dealers, malls, and—for some reason—delicatessens; those must locate in a C2 zone.
The zoning board produced a 37-page ruling ultimately upholding the decision to permit the thrift store to open. These 37 pages reveal, among other things, that even a thrift store renting a vacant commercial space in a strip mall is subject to a number of bureaucratic processes, which are themselves subject to scrutiny by professional NIMBYs.
While NIMBYism is commonly attributed to mercenary motives—racism, concern over taxes or property values, etc.—it also makes sense to view as a result of the development process itself. The more choke points and veto points and twists and turns there are, the more committees and meetings, the more people with various motives will seek to influence the process. In other words, the problem is not so much NIMBYs as the fact that our land-use regime is riddled with discrete points at which NIMBYs can hold it up.
I’ve been reading a fascinating and important landmark book in the study of roadside commercial development, Chester H. Liebs’ Main Street to Miracle Mile. His description of the development of the highway commercial strip is remarkable. He speaks of new forms of businesses “mushrooming” up, of buildings quickly being modified or demolished to make room for new enterprises, of municipalities pressuring or restricting “ugly” forms of construction or land use after they have already become common. There is barely a mention of zoning, and certainly nothing about environmental reviews, community input meetings, zoning board appeals, parking minimums, and other regulations that are in force today almost everywhere.
One senses a similar lack of land-use regulation reading the individual stories of 20th century roadside business magnates, such as Howard Johnson, Harland Sanders, or Ray Crok. The ease with which they bought land and built or rebuilt their buildings is the stuff of urbanist dreams. And the barriers to entry for an entrepreneur were much lower.
This is not an argument for no land-use regulation or environmental review or public input. That flexibility with which buildings could be thrown up in the first half of the 20th century spurred the chaotic vibe of roadside development and much environmental degradation and sprawl. By the 1960s, it helped spark the highway beautification movement (which unfortunately did not lead to a fundamental reckoning with the sprawl pattern of development itself.) And today, it is not our lack of land-use regulation which produces sprawl, but a land-use regime that essentially mandates it.
But the remarkable thing about all of the slowdowns and counter-proposals that characterize development projects today is how small the stakes really are. For the vast majority of development or redevelopment projects, similar ones exist all across America in the thousands. Developers mostly know what works and what does not. The more you zoom out, the more absurd it looks to hold up a project for years in order to knock one story off an apartment tower, reduce the number of units by 10 percent, or play around with the number of parking spaces. The NIMBYs and the “save downtown” folks pat themselves on the back for getting a new building that “fits the scale” of downtown, with no thought to the years, and millions of dollars, and opportunity cost, of doing so. Would it really be that bad if the first Union Hotel proposal—whatever it was—had come to fruition in 2010, and the last 10 years would have seen a more lively and functional main street? Ask that question about every similar project.
A general streamlining of the development process and land-use regime, and permission to do much more “by right” (i.e. without approval from a board) would cut down the number of kinks and choke points. This is a political issue, and it isn’t easy to move the needle on something that’s at once so arcane and so ubiquitous. But you can start by asking: how different, really, is the overall development picture in America compared to what it might be with a hell of a lot less of all of this? Not terribly.
This New Urbanism series is supported by the Richard H. Driehaus Foundation. Follow New Urbs on Twitter for a feed dedicated to TAC’s coverage of cities, urbanism, and place.